Possession of illicit arrack constitutes a valid basis for conviction under the Abkari Act, and courts can exercise leniency in sentencing based on individual circumstances.

O R D E R

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The revision petitioner was concurrently found guilty by the Assistant Sessions Judge and Additional Sessions Judge, Alapuzha, for offence under Sections 55(a) and 8 of the Abkari Act. The trial court convicted and sentenced him to undergo rigorous imprisonment for one year and a fine of rupees one lakh with a default sentence of simple imprisonment for three months. The appellate court declined to interfere with. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred.

2. The revision petitioner was prosecuted by the Excise Inspector, Cherthala Range, with an allegation that at 4. p.m., on 22.7.1999, the Circle Inspector of Excise attached to the Excise Enforcement and Anti Narcotic Special Squad, Alappuzha, who was examined as PW1, found the revision petitioner carrying 5 litres of arrack in a black jerry can, while PW1 moving on patrol duty along Padathuveli-Varakadi road.

3. The revision petitioner pleaded not guilty before the trial court. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 6 were examined. Exts.P1 to P7 and MOs 1 and 2 were marked. When questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence. He further advanced a case that on the alleged date the Excise party asked his father, who was examined as DW1, to meet the Excise Inspector. He accompanied DW1. Thereupon, the case was registered after showing a jerry can. Neither he was arrested from the alleged spot nor anything was seized from him. Rejecting the defence advanced, the trial court convicted and sentenced the appellant.

4. I have heard Sri.P.G.Suresh, the learned counsel appearing for the revision petitioner and Smt.M.G.Lisha, the learned Government Pleader. The learned counsel had taken me through the evidence on record as well as the judgment impugned.

5. PW1 would depose that at 4.p.m., on 22.7.1999, while he moving on patrol duty found the revision petitioner coming across with MO1 big shopper in his hand. Seeing the patrol party, the revision petitioner got puzzled and attempted to turn away. He was intercepted. Contents in MO1 was inspected and found that inside MO1, a jerry can, which was marked as MO2 was kept. MO2 jerry can contained 5 litres of illicit arrack. The nature of the liquid was tested by smell and taste in the presence of the witnesses. The revision petitioner was arrested. The contraband was seized. Exts.P1 and P2 are the arrest memo and the seizure mahazar. PW2, the Preventive Officer attached to PW1, had given evidence corroborating with the evidence of PW1.

6. PWs 3 and 4, who are the independent witnesses, though had admitted their signatures in Exts.P1 and P2, denied the witnessing of arrest of the revision petitioner or the seizure of the contraband. PWs 5 and 6 had given evidence regarding the investigation and the submitting of the charge sheet.

7. Though PWs 1 and 2 were subjected to searching cross examination, no material was disclosed to disbelieve them. There is no delay either in producing the revision petitioner before the Magistrate or in producing the material objects before the court. The revision petitioner was produced at 8.45 p.m. on the same day before the Magistrate at his residence. The thondi articles and the sample were produced before court on the next day. Though PWs 3 and 4 would depose that the material object was said to have been seized from the property of one Sreenivasa Mallan, their evidence is not believable because that is contrary to what is stated in Ext.P2 contemporaneous document prepared by PWs 1 and 2 and attested by PWs 3 and 4. There is nothing on record to suggest that PWs 1 and 2 are any way ill-motivated against the revision petitioner so as to cook up a case against the revision petitioner. Such being the materials on record, despite the persuasive argument by the learned counsel for the revision petitioner, I f